Citation metadata

Date: May 2022
From: Fordham Urban Law Journal(Vol. 49, Issue 4)
Publisher: Fordham Urban Law Journal
Document Type: Article
Length: 7,961 words
Lexile Measure: 1740L

Document controls

Main content

Article Preview :
Conclusion 807 I. Judicial Deference to Agency Interpretation 808 II. Judicial Deference to Municipal Interpretation 814 III. Tetra Tech's Effect on Municipal Deference 816 IV. Other States 821 Conclusion 824


Municipal governments exercise great power over the lives of their constituents. In "a number of policy areas," municipalities "have long exercised significant regulatory authority." (1) They are, for example, "the most important and powerful regulator of land uses and thus of housing supply." (2) As the COVID-19 pandemic has highlighted, they have broad authority over matters of public health. (3) And to name just a few more examples, municipalities extensively regulate the local economy, provide public services, and distribute public benefits. (4) Municipalities regulate all these areas primarily by enacting and enforcing ordinances. How ordinances are interpreted thus matters a lot, both for municipal governments and regulated parties.

Even so, scant attention has been paid to how courts interpret municipal ordinances. That is especially true compared to the constant focus on how courts interpret federal and state administrative rules, statutes, and constitutional provisions. In particular, jurists and scholars have spilled much ink about judicial deference to administrative agency interpretation of law. Arguments about Chevron deference, Auer deference, and their state analogues are all the rage. (5)

Wisconsin presents an ideal case study on the relationship between agency-deference principles and municipal-ordinance interpretation. As recounted below, Wisconsin courts once deferred to agency interpretations of statutes and rules under certain circumstances. But, in 2018, in Tetra Tech EC, Inc. v. Wisconsin Department of Revenue, (6) the Wisconsin Supreme Court ended that practice. For several years, Wisconsin courts have also deferred to municipalities' interpretations of their ordinances under certain circumstances. In many ways, this practice resembles preTetra Tech agency deference. Indeed, both deference doctrines instruct courts to defer to a non-judicial actor's interpretation of ambiguous law so long as it is reasonable.

This Essay explores judicial deference to municipal interpretation of ordinances and Tetra Tech's effect on that deference. Part I briefly describes Wisconsin's pre-Tetra Tech agency deference doctrine. It then reviews the multiple grounds on which the Tetra Tech court relied to end that deference. Part II details Wisconsin's doctrine of deference to municipal interpretations of ordinances. Part III considers whether Tetra Tech's reasoning and holding extend to municipal deference. Finally, Part IV briefly remarks on states other than Wisconsin, noting that Wisconsin's experience is shared elsewhere and has potentially broad application. This Essay ultimately concludes that all of Tetra Tech's bases for assailing agency deference--constitutional structure, due process, and prudential concerns--also apply to municipal deference. Based on Tetra Tech, then, municipal deference must fall--or already has fallen.


Before June 2018, Wisconsin courts adhered to a framework of binding deference to administrative agency interpretations of law. While acknowledging that "statutory interpretation is a question of law which courts decide de novo" courts simultaneously declared they would "defer to an administrative agency's interpretation of a statute in certain situations." (7) Starting with roots in the late 1800s,...

Source Citation

Source Citation   

Gale Document Number: GALE|A705927141